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Friday, December 29, 2006

I started off this blog by saying that it was time for us to ask difficult questions about this country. As the year draws to a close, I think it is even more imperative for us to ask what it is that this country needs next year and how it is we are going to get there.

I find it distressing that in discussing the state of the nation from almost any perspective it is inevitable that the discussion becomes negative, sometimes to the point of hopelessness and futility. I find it distressing not because what is discussed is untrue and that the situation is not seemingly futile. I find it so simply because everything that is said is more usually than not true.

I believe that the Administration has lost sight of the fundamentals, and in having done so, has allowed for the undermining of the foundations for a strong and vibrant nation.

A democracy like Malaysia is founded on two inter-related assumptions. First, that the key organs of state – the Judiciary, the Legislature and the Executive – are strong, dynamic and functioning as they should be, each acting decisively in a manner mandated by the Constitution towards the achievement of the aspirations of the rakyat. The notion of a “government for the people, by the people” is no less true for Malaysia than it is for any other democracy.

The second assumption is that each of the three organs of state serves as a watchdog over the other two so as to ensure that no one organ oversteps its Constitutional mandate and acts contrary to the interests of the nation and the rakyat. Put another way, the three organs of state are intended to ensure that a process of ‘check and balance’ takes place all the time. This is what we mean when we refer to the doctrine of separation of powers. Were it to be otherwise, there would be arbitrary exercises of power and where it was the Executive that called the shots in an unfettered manner, there would be a totalitarian system in place. Any democracy that was said to exist in such a scenario could not be said to be a true democracy.

Additionally, the second assumption implicitly recognizes that each of the three organs has a primary role to play in governance as a whole, and not just within the specific area of responsibility. In this way, the burden of governance is shared out and not carried by the Executive alone. Mistakes can be corrected through the judicial process or parliamentary discussion. Similarly, ideas, policies and decisions can be tested and strengthened in parliament through consultations and debate.

The reality of the Malaysian situation however is that the process of check and balance has not occurred in any meaningful way for some time. This is because the two assumptions identified above no longer have a place in this country.

The Judiciary

The Judiciary as it was conceived and entrenched into the constitutional framework by the founders of the nation was one that would be able to fulfill the role it had to play. Until 1988, this was the case and the Malaysian Judiciary was recognized as being amongst the best in the Commonwealth. This was hardly surprising as, regardless of the other effects colonisation may or may not have had on the Malayan peninsula, the British brought with them a strong judicial tradition. This tradition formed the foundation for ours. The law journals for the period leading up to 1988 reflect this as decision after decision showed the sense the Judiciary had of itself and of the role it played in nation building.

In 1988, this strong tradition of independent, fearless, learned and insightful jurisprudence collapsed. The Judiciary was attacked. Many will remember or would have heard of the dismissal of Tun Salleh Abas and two Supreme Court justices, Dato’ Goerge Seah and the late Tan Sri Wan Sulaiman Pawan Teh that year. This was the public dimension of the attack and it sent shockwaves through the system. Though the Constitution provides a mechanism for the removal of a judge on grounds of misconduct by a tribunal of peers, never before had any judge, let alone a Lord President (now known as Chief Justice) been removed. Further, the grounds advanced for the removal were incredible; in effect, the judges were removed for having acted independently and they were expected to in the circumstances. I would urge a reading, or a re-reading, of “May Day For Justice” by Tun Salleh Abas and K Das for a comprehensive picture of how the campaign against an independent judiciary was mounted by Dr Mahathir. Some details are set out below.

While recent calls for an inquiry into the removal of the three judges have largely focused on the injustices and humiliation they suffered, it must be noted that the removal and the way in which it was orchestrated was a clear signal to the Judiciary that it was not free to think that it could act independently nor was it allowed to. This was something the Judiciary appears to have taken to heart, as decisions after 1988 seem to show.

Less obviously, there was a knock on effect to the removal. The Malaysian Bar is known for its jealously guarded and fiercely defended independence. It has time and time again stood up in defence of the rule of law and the administration of justice. The Judiciary is as much a part of the administration of justice as the Bar is. And so, when the processes were started in 1988, the Bar came to the defence of the judges. Param Coomaraswamy and Raja Aziz Addruse each led the charge in their own way. Raja Aziz acted for Tun Salleh and later, as President of the Bar, called for a boycott of the succeeding Lord President, Tun Hamid Omar (Tun Hamid headed the tribunal which removed Tun Salleh even though he had been involved in some of the events that led to the tribunal being empanelled. He was also the obvious successor to Tun Salleh and as such had a vested interest. Tun Hamid refused to withdrawn, leading to Tun Salleh refusing to submit to the tribunal’s jurisdiction).

Needless to say, the relationship between the Bench and the Bar suffered. I believe this to have had a serious impact on appointments to the bench as post 1988, the majority of appointments was from the Judicial and Legal Services Commission, a part of the civil service of Dr Mahathir’s government. Further, the Bar was no longer consulted on appointments. The current legal landscape was largely shaped by these events and the judges appointed in the period after1988. The Judiciary began to act, and still acts (though seemingly less so now), defensively, seeing itself as unfairly attacked by the Bar, overlooking the bigger issues it would seem.

And though Bench-Bar relations may have improved to an extent since then, there is still a shroud over appointments and promotions and resultant questions and doubt about competency and credibility. The Bar fights on for a transparent independent judicial appointments mechanism.

Less publicly, the attack on the Judiciary took the form of a constitutional amendment that the Mahathir Administration pushed through parliament in 1988. This was a parliament that was emasculated by the 1987 Operasi Lalang by which Dr Mahathir had detained 107 activists and politicians under the Internal Security Act (the “ISA”). These included Lim Kit Siang, the then leader of the opposition, and Karpal Singh, an equally noted opposition member and Lim’s colleague in the Democratic Action Party (DAP).

The effect of the amendment was disastrous. Up to then, the Constitution had in Article 121(1) provided that the judicial power of the Federation of Malaysia was vested in the Judiciary. While seemingly stating the obvious, this provision had enormous legal significance as it amounted to constitutional recognition of the Judiciary’s entrenched right to review any exercises of power on the part of the State. Put another way, it guaranteed the right to judicial review.

The Mahathir Administration found the Judiciary to be an unnecessary obstruction and interference with what it considered its absolute right to govern. In 1986, the Supreme Court ruled against the government in a case involving the takeover of Bank Bumiputra by Petronas. The same year, the Supreme Court revoked a Home Ministry suspension of the Asian Wall Street Journal and quashed orders expelling two of its journalists. Lim Kit Siang’s challenge against UEM being granted the North South highway concession was pending before the Supreme Court as was the appeal by the UMNO 11 led by Tengku Razaleigh. The appeal would decide on the validity of elections returning Dr Mahathir as President of UMNO and the validity of UMNO as a whole. This was the backdrop to the removal of Tun Salleh, Dato’ George Seah and Tan Sri Wan Suleiman.

But it seemed that removing the Lord President and the two judges was not enough. The Judiciary had to be silenced in cases involving exercises of strategic administrative power. Article 121(1) was amended to provide that the jurisdiction and power of the Judiciary was as vested by Parliament through Federal Law. In one fell swoop, the Mahathir Administration suborned the Judiciary to Parliament and, in effect, the Executive. There was no longer the separation of powers. The question of “check and balance” no longer arose. The Malaysian Government became an absolutist one.

In this new scenario, Parliament was permitted unchecked to make laws that oust or exclude the right of the Judiciary to inquire and correct. Laws could also be made to vest a wholly subjective discretion in the Government meaning that if challenges were brought to court, the court would be in no position to question the exercise of discretion on the basis that the State “knew best”. The ISA exemplifies these laws. It has a provision, which excludes from judicial review (save over technical matters) the decision of the Home Minister to detain without trial for renewable periods of up to 2 years. The Printing Presses and Publications Act has a similar provision, as does the Immigration Act.

Why would any Executive of any State create law that deprives the Judiciary of the State of its essential function? Why would the Executive create laws that exclude the right of review? There is only one possible answer: the Executive does not want to be told it is wrong; the Executive wants to act above the law.

In the same amendment process, the now controversial Article 121(1A) was inserted. As Dr Mahathir recently said, he got away with it. I do not however consider Article 121(1A) problematic.

I do however think that the 1988 amendment to Article 121(1) was unconstitutional as its effect was to upset the balance of powers. This balance is inherent in the doctrine of separation of powers that I believe our Constitution to embody. There is a widely accepted principle of constitutional law that militates against amendments to a written constitution that changes its ‘basic structure’. The 1988 Article 121(1) amendment had the effect of changing the basic structure of the Constitution (this is why the open letter by the Article 11 coalition calls for a return to the pre-1988 position).

In a somewhat startling decision, the Federal Court under the stewardship of Tun Dzaiddin held in effect that the amendment was a valid one and had all the effects that the Mahathir Administration wished for. I believe this decision to be reflective of the conservatism that developed subsequent to the events of 1988.

The Executive And Legislature

The events of 1987 and 1988 wounded the nation deeply. The national psyche was affected in ways that are more obvious now that the Mahathir Administration is no more. Amongst the lingering effects of those dark years, the most telling is the continued posturing on the part of the Executive that it knows best and that it will do whatever it considers necessary to enforce or reinforce the belief that it is correct.

Put another way, two lessons appear to have been taught to those in the current administration by the events of 1987/1988 (which replayed in one form or the other to the end of the Mahathir Administration). First, the way in which matters were dealt with was effective; that the ends justify the means. How else can one explain the perpetuation of views of governance and the rule of law which are not correct and which allow for arbitrary exercises of power. We have heard in these past three years astonishing views by Ministers that mirror the misguided views of Dr Mahathir on Executive discretion, the role of the Courts and so on. We will all remember the astounding suggestion by a senior Minister that the Anti-Corruption Agency has no power vis a vis Ministers as the ACA is answerable to the Ministers. This exemplifies the belief on the part of some, if not all, Ministers that they are above the law.

In the same vein, how else can one justify the continued lack of transparency and accountability on matters of public interest. For instance, a Minister says that those affected by recent floods were in fact warned. How do we know this for a fact? The reality is that we do not and unless we are prepared to go through great efforts to confirm this on our own to an uncertain end, we will have to rely on the say-so of the Minister. This scenario is repeated in almost every other aspect of public life.

Second, that the Judiciary and even the Legislature are mere appendages to the Executive. There still appears to be a belief on the part of the Badawi Administration that only it knows what is best for the nation and that there is no real value in meaningful consultations and debate; that the process of democracy is an annoyance that has to be tolerated in order to preserve a semblance of correctness.

The Speaker and Deputy Speaker of Parliament routinely disallow important motions by the Opposition leaving only in general mundane matters that are not threatening to the current Administration (I concede that there are exceptions from time to time, mainly because the pressure to discuss these matters is too great to deflect). Parliamentary debates are unnecessarily defensive and gladiatorial in nature. It seems that scoring points against the other side is the objective rather than discussing matters, which affect the nation’s interests.

Similarly, the continued reliance by the Government on ouster provisions to exclude judicial scrutiny cannot be explained away by a declaration that the law provides for such exclusion. The Executive must act in a way that is transparent and be seen to be transparent. It can submit to scrutiny. It can move to repeal these offending provisions.

It is hardly surprising that in perpetuating the closed-door methodology of the past, the problems that afflict this country have worsened. At the heart of these problems is corruption, a scourge that insidiously affects almost every, if not every, sphere of our lives. We have not climbed up the Transparency International’s Corruption Perception Index since the Badawi Administration came in. We have in fact fallen lower in the rankings. There is no point pondering over why this is so. The answer is obvious: what else can we expect when one cannot discuss these matters for fear of reprisal through a range of draconian laws; when one cannot adequately challenge situations which stem from corruption due to limited jurisdiction on the part of the courts; and when one cannot openly discuss these matters in Parliament because the rules of play are implemented to ensure discussion of only matters of a non-threatening nature.

It may not be that the Executive chooses to condone corruption. It may be that the Executive in its misguided notion that it has to solve all problems is in no position to do so. Power sharing as is contemplated by the doctrine of separation of powers will ago a long way to alleviate this difficulty.

A 2007 Wish List

The Executive of a country serves the nation and the rakyat. The brief overview set out above suggests that the reverse is true in Malaysia. The Badawi Administration to show that it serves the rakyat and not just itself or UMNO. Merely paying lip service to the concept through rhetoric and posturing is insufficient.

Malaysians have spoken out against repression and oppression for a long time now. We have been speaking out since the events of 1987 and 1988. Thus far, despite all that has been said and done, it appears that the Administration only listens when it wishes to and takes on board only what is useful for it. This has to change. It is time for the Administration to listen to us meaningfully and to show us that it has heard us. It can do so by taking several crucial steps all of which will go to show Malaysians that politics does not define us.

First, give back to Malaysians an independent Malaysia Judiciary. Repeal the 1988 amendment to Article 121(1) and reinstate the previous version. Let the Judiciary have its judicial power back and let the Judiciary defend against arbitrary and excessive exercises of power like it has always done. Let Malaysians feel secure in the knowledge that their rights are protected and that the balance of power is restored.

Second, acknowledge that the events of 1987 and 1988 are years that have to be accounted for and that injustices were caused on so many levels. I do not think that Malaysians want retribution. They want to heal. They want the Judiciary to heal. They want to know that they exist in a country in which democracy means something.

Third, repeal laws that have served only to perpetuate the climate of fear created in 1987/1988. These laws only serve the vested interests of the Executive. Malaysia does not have any need for the Internal Security Act, the Sedition Act, the Official Secrets Act, the Printing Presses and Publications Act and the University and University Colleges Act and laws that restrict assemblies. These laws stifle free expression, breed fear and reject the freedoms inherent in democracy.

Fourth, allow for Parliament to operate as Parliament must. Ensure that meaningful and constructive debate over matters of public interest takes place. Ensure that deliberations over new laws is such that in the event such laws are passed, they are passed as the Constitution intended them to be passed.

Fifth, ensure that appointments to the civil service and the Judiciary are based on merit and not on ethnicity. While affirmative action may have to be taken, steps taken in furtherance of affirmative action cannot be allowed to undermine key institutions and organs of State. Only the best – irrespective of ethnicity – must lead and serve this nation. I note that there are many distinguished Malays in a variety of fields who are more than qualified. I also not that there are as many non-Malays.

Thursday, December 21, 2006

Looking around, it seems that so much fear permeates through Malaysian society at so many levels.

The average Malaysian lives in a world defined by fear. Fear that the ‘authorities’ will take action at even a single expression of discontent. Fear that he/she is going to be ‘black-listed’ by employers, by ‘those in power’. Fear that he/she is going to be singled out, vilified.

These fears are largely unsubstantiated and self-serving. The average Malaysian lives in a state of paralysis largely of his/her own contrivance, allowing him/her to not have to do anything.

The question is why? I accept that there are laws that allow the State to control us. But laws are laws and leadership is leadership. The latter uses the former to control only where it is absolutely essential to ensure continuity. The legitimacy of any government is undermined when draconian laws are brought into play because the average person knows that the laws are not being used for any true or legitimate purpose but rather to preserve the status quo. In the Malaysian context, they seem to be applied only where there is a consequence beneficial to the powers that be. And while these laws exist – ISA, OSA, Printing Presses and Publications Act, Sedition Act – the Administration appears to have applied them only where it believed it could do so without suffering too much of a political consequence.

I believe that the Administration has only acted in these situations when it knew that the rakyat would not react or that such reaction that might occur would be negligible in its effect or could be controlled.

The painful reality is that Malaysians, perhaps too comfortable, have not reacted or have not reacted sufficiently. This might have been out of fear, or apathy, or a lack of sensitivity or even a total lack of concern. The truth is that the resounding silence of Malaysians in the face of unacceptable actions or decisions on the part of the Administration has had little to do with a rational, objectively founded fear. Instead, it has had almost everything to do with vested interest.

It is this state of affairs that has allowed the Administration to believe that Malaysians can be bullied or coerced or duped into submission. In turn, it is these factors that have led to most Malaysians thinking they should not speak out. More crucially, it is these factors that have led to the isolation and marginalizing of those few that do speak out and to the Administration constantly undermining civil society.

The adage that there is strength in numbers cannot be more true where Malaysia is concerned. It is easy to house a few in Kamunting, it is not so easy to house thousands.

Malaysians not speaking out allowed for the victimization of Lim Guan Eng and Irene Fernandez. Malaysians not speaking out have allowed the Malaysian Government, a member of the UN Human Rights Council, to not agree to the request by the Special Rapporteur on Human Rights Defenders to carry out her functions in Malaysia. To carry on violating basic human rights in one form or the other. How else can one justify the decision of the Administration not to ratify the Covenant on Civil and Political Rights and the Economic, Social and Cultural Covenant. Is it because Malaysians accept that they are not legitimately entitled to these rights?

Worse, Malaysians appear to support racial discrimination. Why else has the Administration taken the position that it does not have to ratify the Convention Against Racial Discrimination (CERD)? Does the Malaysian Government believe that Malaysians support discrimination? Can the NEP, in one manifestation or the other, be seen as a Malaysian (as opposed to Malay) policy of racial discrimination? If it is not one or the other, if we truly believe in ‘Bangsa Malaysia’, then should we not be reacting enough to ensure that the Government ratifies CERD and brings it into force at the national level.

We are as much to blame for the pitiful state of affairs that we are in. Malaysians through their silence have encouraged the dismantling of the rule of law and democracy in this nation.

We are to blame. The government is a government of the people. Its decisions are those of the people. Our claims to fear are hollow. Self-censorship is an excuse for inaction. In our silence we have become willing conspirators with those we condemn.

Sunday, December 17, 2006

(Published in the NST, 17th Dec 2006 as "An Open Letter To The Attorney General: Intervene To Ensure Justice For All")

Dear Sir,

I have had the privilege of meeting you and also of appearing against you in several constitutional cases. I have found you to be reasonable, fair minded and open to all views. It is to those qualities that I now appeal.

I write concerning the matter of Anthony Rayappan and all matters like it. At the core of disputes of this nature is the issue of access to justice. Reactions to the actions of the religious authorities have not been so much about the claims of these authorities but about the recourse to the syariah courts which have had the consequence of denying the claims of family members and of their right to be heard.

I believe it bears restating that under our constitutional system every person is guaranteed a right to access the courts to address a grievance. Where there is a right, there is a remedy. And yet, in these cases the reverse appears to be true. Parties who have a legitimate basis are being shut out from the courts. Worse, the Constitution is being used to justify this unfairness.

It may have been the case that there was a reasonable basis to suppose that Rayappan, or M.Moorthy before him, had in fact converted to Islam. I do not know. It may also have been the case that the family members of the deceased had a basis to conclude that they had not. Both sides were as such entitled to get a declaration by a court in order to be sure about what it is had to be done.

And that is the way it should have been with all parties appearing before a judge of the High Court and presenting their respective cases. That is how it has always been, even after the introduction of Article 121(1A) of the Federal Constitution.

The affair, like the one before it, became controversial, because the Majlis Agama (Religious Council) took the view that not only was it entitled to move the syariah court for a declaration, it was the only manner in which this issue could be solved, as the syariah court had exclusive jurisdiction.

This view is erroneous. The syariah court only has a limited jurisdiction over persons professing Islam. The Majlis Agama is a body corporate and cannot in law be a “person” or a “person professing Islam”. Additionally, the family members are not Muslims. There is no question of their “submitting” to jurisdiction as has been suggested nor can the syariah courts compel their attendance as was attempted. The Constitution itself has defined and limited the jurisdiction of the syariah courts and one cannot create jurisdiction by submission. Even if there was law to that effect, that law would not be constitutional. As such, it is only the High Court that can hear disputes of this nature.

Article 121(1A) does not change this. Subsequent to the amendment which introduced this provision, the apex court in at least three decisions explained the manner in which the jurisdiction of the High Court is to be determined. In particular, it was declared that where the parties to the dispute include non-muslims the High Court should hear the matter.

That is the law. Nothing has changed in between and yet for reasons beyond comprehension the view of the Majlis has, by default or otherwise, become the definitive view. This has allowed for an undermining of the Rule of Law and of constitutionalism. It has also allowed for the Constitution to be turned on its head. How else can one describe a situation where access to justice is denied in the name of the Constitution?

I write to you as the principal guardian of the Constitution. I urge you to intervene to correct this sad state of affairs. As the Attorney General, I would say that the burden is squarely on you. You have the standing and influence to play a pivotal role in bringing some sense to the situation. The scenarios that have played out involve questions of public law in as much as they do private law. They further involve state or state supported actors who are answerable to the state. The perceived unfairness has resulted in an erosion of confidence in the key institutions of the nation and the suggestion that discriminatory practices abound.

There are several ways in which you can approach the issue. Forgive my boldness for taking the liberty of suggesting them. I do so with the certainty that you will see my doing so as being prompted by nothing more than my duty as a citizen to act in the interests of my nation. As Malaysians, we are all charged with finding constitutionally just solutions.

First, as Attorney General you can and must publicly express your view as to how the Constitution guarantees equal access to justice and equal protection for all. You must express your view as to how situations like this should be handled. A statement by you will be of great influence and go a long way in guiding those in doubt or who are of mistaken impression. It is equally crucial for you to correct leaders when they air incorrect views. I believe that, to an extent, uninformed views have entrenched the mistakes further.

Second, your chambers could undertake a review of the training currently undergone by civil servants, especially those in the departments most involved in issues of this nature, with a view to ensuring that these individuals appreciate the constitutional framework in which they operate and the permissible limits. This would have to include the syariah court judges. These courts are established by law enacted by constitutional mandate, as is the law applied by these courts. It is imperative that the misimpression that the syariah courts apply syariah as distinct from enacted law be corrected. I believe that it is this misimpression that has allowed for a certain mindset to develop where questions of religion are put before duties and obligations in law.

Thirdly, where state actors are involved, your chambers could take a more proactive position in ensuring that legal positions are consistent with the Constitution. Where there are legal officers involved who are directly under your control, this is essential. Positions in court must be taken that are constitutionally correct so that no matter who wins at the end of the day, the Constitution and constitutionalism are not sacrificed. As a fellow lawyer, you would appreciate that all lawyers are charged as officers of the court with the pursuit of truth.

The situation we find ourselves in is not just a matter for the judiciary although it does play a key role. Controversy will not occur where Malaysians are all of like view where basic rights are concerned. Disputes will occur but we will be able to deal with this in the way we have always done; with civility, and with attention to and consideration of the interests of all.

In concluding, I urge you once again to come to the defence of the Constitution and the nation. They both need you.

Monday, December 11, 2006

We have heard of activists being described, most commonly by parties aligned with the establishment, as being anti-government. Lately, in the context of the discourse on the Constitution and Islam, we have heard declarations of how activists are anti-Islam or even apostates.

There is value in considering why this is so. Such labeling is not merely a dismissal of efforts which some of us consider important. While that is clearly one of the consequences, we should pause to consider whether there is a deeper significance. I believe that there is, and an understanding of these more fundamental considerations may give us an insight into the mindset of those that seek to entrench themselves when they lack the moral or legal legitimacy to do so. They also give us an insight into why the racial and religious debates in Malaysia are nuanced in the way that they are.

For those who desire power but lack the necessary legitimacy, the path to power is necessarily a compromised one. The compromise takes many forms and in particular, for the purpose of this comment, often manifests as the elimination of the right to expression. We often take this to mean the stifling of legitimate dissent with the more obvious aim of preventing the expression of any views contrary to those that are in power. Though this is correct, it is not the entire purpose of the silencing of views.

The elimination of expression allows for the creation and maintaining of an ideology which those that want power in this way utilize as the principle means to legitimizing their claims to power. The assumption that the stifling of legitimate dissent would be sufficient to allow for power overlooks the obvious fact that many who disagree remain silent. Their silence is perhaps more dangerous as it does not allow for an assessment of positions. Their silence is indicative of a possibility that the next time they are at the ballot box, they may not be supportive.

An ideology is as such crucial to secure a vote. The difficulty here is that any ideology that springs from citizens spontaneously and naturally will be one that would give power to those who have legitimacy. This is not useful for those who do not have legitimacy.

The solution to this is to devise a ‘supportive’ ideology and impose it on citizens in such a way so as to ensure that a reasonable number of these citizens will be, for want of another expression, supportive. The creation and maintaining of such an ideology does not allow for dissent as dissent will show the ideology for what it is; a hollow and breakable shell.

In order to protect this fragile cocoon, it is important to make citizens feel that they should, even must, protect it. Propaganda efforts, sloganeering and all, go a long way in assisting in this cause. But it is not enough as with dissenting voices propaganda begins to wear thin. Additionally, while many of us have stopped listening to the inner dialogue between truth and untruth that takes place in all of us, that dialogue is one to which each and every one of can be awakened. All it takes is a spark and a lone voice of truth could be just that. Stamping out dissent forcibly will only serve to undermine efforts aimed at creating the impression of legitimacy.

The obvious course is to neutralize the dissenter or dissident in a seemingly ‘legitimate’ way. A method by which this can be done is to make citizens turn on those who have a different view; and the simplest way of doing this is to engineer a situation where the former believe in the ‘truth’ of the constructed ideology and then corral the latter into being the ‘Other’. The labeling of these dissenters as ‘anti’, demonizing them and robbing them of legitimacy are all means to this end. This is not to say that forcible measures will never be used. They will, as we have seen, when the political cost of not using them is too high.

Put another way, for this process to play out to its intended end it is important to eliminate any individuality. Individuality breeds dissent. The ‘dissident’ lives in reality and sees the lies on which the ideology of those who claim power is built. They see truth while others celebrate lies. The clarity they offer, the view of a future in which the past is reflected, is a fearful prospect for those whose political existence depend on the perpetuation of a construct.

The ‘Bangsa Malaysia’ debate illuminates the theory. To many Malaysians the call for a ‘Bangsa Malaysia’ resonates, as it is to them a declaration of equality, justice and fairness. It signals an acceptance of the diversity that exists in Malaysia and an understanding that such diversity can exist in unity. The political advantage of the resonance created is manifest. As such, this is a construct that the government wishes for us to take on as a reality.

The construct however is premised on the underlying assumption that all Malaysians are equal in the fullest sense of the word and that they are able to articulate their individuality. One can see the difficulties with the assumption of equality. As I tried to explain in my first posting “A Matter Of Protection, Not Privilege”, while the Constitutional framework lays foundation for such an assumption the realities however militate against the notion. The recent reworking of the social contract so as to justify a permanent state of ‘privilege’ and the parallel reworking of the concept of Bangsa Malaysia to accommodate the revised social contract theory are illustrative.

Likewise, allowing for individuality will only open the lid to more questions and claims which while reasonable cannot be answered or met for reasons that are patently unreasonable.

It is significant that the UMNO will not altogether abandon the notion of a ‘Bangsa Malaysia’. It cannot do so as the notion legitimizes its assertions that it stands for all Malaysians even as it legitimizes the continued association of the MCA and MIC with the UMNO. Similarly, the UMNO as it is now cannot abandon the language of ‘privilege’ as it would lose legitimacy in the eyes of those it believes it needs the support of. The tension between the two obviously conflicting stances or ‘ideologies’ is obvious. It is for this reason that we have heard much about those who are anti-Malay, almost as much as we have heard of Malays being under threat.

It is also for this reason that the leadership has had from time to time to invoke draconian anti-expression laws notwithstanding the political cost.

As a further example, the tactics of the so-called Islamic NGOs have similarly revolved around the creation of an ideology which they have characterized as being the only properly ‘Islamic’ one and a subsequent sustained and virulent attack on those who question their claims to the same. We have heard much about those who are enemies of Islam or who are anti-Islam and more about how Islam is under siege in Malaysia. The power base of these organizations rests on an acceptance, directly or indirectly, of their extremist vision of Islam in Malaysia and the place and role of the Constitution. Much of this vision is a matter of aspiration rather than reality. They have however been successful to an extent through the dynamic described above in creating the impression that their aspirations are the reality.

I concede that the analysis I have attempted is not seamless. I hope however that it has offered a perspective of how we should perhaps rethink what is happening around us and our reactions to the same.

(This comment was inspired by an essay entitled ‘The Power of the Powerless’ (1978) by Nobel Laureate, Vaclav Havel. ‘Living in reality’ was his idea as was the usage of ideology to legitimize power)

The Rayappan affair is worrying as, apart from the grief caused to the family, it indicates a total lack of understanding on the part of the Government and the Attorney General’s chambers as to how the separation of powers is meant to work in this country. Several points need to be made.

It is not for the Executive to resolve conflicts other than as a mediating party or, where the Executive is a party to a conflict, by offering a settlement. In the Rayappan affair, the Executive was not a party to the conflict. This was between the Majlis Agama and the family. The Majlis Agama had for its own reasons taken this matter to the syariah court and there were proceedings pending. The family had taken the matter to the High Court. Whether either party was right or wrong was a matter for the various courts to decide, though my view is that it was only the High Court that had jurisdiction.

By directing the Attorney General to determine Rayappan’s religious status, the Government in effect side-stepped the Courts. This was not legally permissible. It also creates the impression that the ultimate decision is with the Government and not the Judiciary. This line of thinking appears to have become more prevalent in the Government as of late and must be corrected. Decisions of the Judiciary are declaratory of the law and the Government, like all of us, is bound to follow the law as written and declared.

I recognize that the situation would be different if the Attorney General had advised the Majlis Agama to withdraw its case. The decision would ultimately have been that of the Majlis Agama, a party to the conflict. I believe this to have been the case although the media reports are ambiguous. If this were the case, then Malaysians are entitled to know why the Majlis Agama took the position it did in the first place. And if the Majlis Agama takes the view that it was correct in the first place, how could it allow the subsequent developments, that is the release of the body to the family for burial as a non-Muslim? This begs the question of whether there should be any intervention by the Majlis Agama in situations like this but that is a matter which I will discuss at another time.

Additionally, it is not for the Government to direct the Attorney General as was done in this case. The Attorney General may be requested to consider or look into a matter but he cannot be compelled to exercise his discretion. This is most obvious when one considers the discretion of the Attorney General when he wears the hat of the Public Prosecutor. The Public Prosecutor’s discretion to charge or to not charge as the case may be particular persons is entirely his own. Were it otherwise, the Government would be deciding who is prosecuted and who is not. I am surprised that the Attorney General seemingly complied with the direction instead of correcting the impression created. Though one can appreciate that diplomacy is required, this cannot be at the expense of public confidence in the system of government employed. Such confidence must be prioritized above everything else.

Quite apart from the constitutional and legal considerations, the Rayappan affair underscores the need for the Judiciary to deliver its decision in the Lina Joy case. The precedent set there will be of great value (if the Federal Court concludes on all the issues raised in a comprehensive manner) and go a long way to resolving the conflicts of laws that underscore the case and cases like it.

There is no tragedy in Rayappan’s family not wishing to submit to the jurisdiction of the syariah court. In as much as they are entitled to not be compelled to give evidence in the manner the Majlis Agama wished, as a matter of law Rayappan’s family members cannot do so. The Federal Constitution has limited the jurisdiction of any syariah courts, such jurisdiction to be conferred by written law, to persons professing the religion of Islam. The family members are not such persons.

In the same vein, the Majlis Agama is not a person professing Islam. It cannot be. It is not a natural person. It is a body corporate. As such, it was not in any position to petition the syariah court for any order. Neither was the syariah court in a position to entertain any application by the Majlis Agama.

Additionally, the syariah court cannot order any state department or agency to do one thing or the other. Such departments or agencies are not ‘persons professing the religion of Islam’ within the meaning of the Federal Constitution.

And yet these things are happening. Orders are being granted. The crucial question is why. More significantly, why is the Government not doing anything about it? Most, if not all, of the actors involved are government servants. Surely there is a method by which these actors can be made to understand their roles and more importantly the legal framework in which they operate, constitution and all.

Any exercise of power which runs counter to the system envisaged by the Federal Constitution is an abuse of power. The system envisaged is not one which lends itself to discriminating against the widow of Rayappan or persons in her situation. The system is not one which envisages a distinction between muslims and non- muslims in the way they articulate the right to access justice.

Seen from this perspective, and when viewed in the context of manifest abuses of powers as noted above, the question is really why the government does not appear to be doing anything to correct the obviously incorrect application of legal principle. By its inaction, the government is accountable for what is clearly state supported discrimination. More so the Attorney General's chambers for permitting the wrongs to perpetutate and for not taking the position it should on the Federal Constitution.

This by any account is wrong and reprehensible, no matter the explanation. No matter the exhortations for Rayappan’s family members to submit to jurisdiction. No matter the directions from the Prime Minister.

The tragedy of Rayappan's case is that all the answers are provided by the Federal Consitution and that the answers provided cater to the needs of all concerned. The High Court clearly has jurisdiction. The issue is whether Rayappan passed away as a Muslim, the remedy needed a declaration. If there are elements of Islamic law that need to be understood in order to come to this finding of fact, expert evidence can be led. This procedure is invoked regularly in the High Court in various matters and there is nothing to distinguish cases of this type from any other case. This was the approach taken by the Supreme Court in a similar case called Dalip Kaur in 1992.

The tragedy of Rayappan's case is that the Constitution does not seem to matter any more.

There is no justification that can be offered to Rayappan's family for what it has had to undergo. I cannot say whether Rayappan did in fact pass away as a non-Muslim. The very minimum that his family members are entitled to are the certainty that they will be given a chance to air their grievances in a court of law and that the issue will not be adjudicated upon by stealth in the syariah courts, courts to which they do not and cannot have recourse

And the involvement of State actors in the scenario is inexcusable. The Government must be blamed. It cannot say that it was taken by surprise, that it has not been appraised of the way things are being handled and the law applied. This is what the Article 11 road shows were about. The Government also promised when Murthi's burial became a very public issue last year that the scenario would not repeat itself. Well, it has, repeatedly, in one form or the other.

For this reason it is equally inexcusable for the Government to have buried the Article 11 initiative and any like it under the mountain of lies that were spread about the same. The Government owed a duty to Malaysians to allow civil society to assist it in solving a situation that it does not appear to be able to solve. In killing the debate on the wrongs being caused by a misapplication of the law, the Government intentionally looked away. It still seems to be looking the other way.

Saturday, December 2, 2006

I believe the time has come for us to ask difficult questions about this country and who we are when we say we are Malaysians. In the same vein, I believe that it is time for Malaysians to stop offering avenues of escape to those responsible for our well being and our collective future. We must confront the fact that something is very wrong at the heart of Malaysia.

Like many others, I was angered by some of the speeches delivered at the recent UMNO general assembly. As I considered the matter further, I began to appreciate that we may have benefited from having heard the sentiments expressed. Despite the feeble attempts to subsequently soften and explain away the obviously painful impact of the speeches, the truth had revealed itself; those who claim a virtual monopoly to lead this nation are racial supremacists and proud of it. All others, it would seem, are incidental to the vision of supremacist ideology as it was played out at the assembly.

The attempts at damage control were pitiful for the fact that they appear to have been aimed not so much at the healing of the community as a whole but more at attempting to exculpate the party. In this way, such efforts added insult to injury. The suggestion that the sentiments expressed were intended only for the party was implausible, disingenuous and clearly an attempt to avoid responsibility. From the outset it was obvious that this assembly, like others, would be heavily publicized. Like in previous years, the print media would be giving the event maximum coverage. Additionally, the assembly was to be broadcast live. These were matters known to all concerned and, I would say, factored heavily in how they positioned themselves. The extreme racism, for that was what it was, was put on display for the world to see as a miscalculated show of strength.

The justifications, offered as they have been instead of the apologies and humility we all deserve, have not gone far in convincing Malaysians that the racial extremism displayed is not an accurate reflection of how the UMNO, and as such by its own declaration the leadership, sees things.

And the way it sees things is obvious; while all of us are equal, some of us are more equal than others. I do not say this to incite disaffection. I have Malay friends who were equally disgusted by the goings on at the assembly. They show me that the attitudes celebrated at the assembly are not universally those of the Malay community at large.

Instead, I say this to lay foundation for the question of whether the Federal Constitution does provide for a privileged existence in the manner suggested at the general assembly.

The constitutional provision pivotal to any discussion of this subject is article 153. It refers to the ‘special position’ of the Malays and the natives of Sabah and Sarawak and declares that it is the responsibility of the Yang Dipertuan Agong to safeguard these communities and the legitimate interests of other communities. It does not describe this ‘special position’ as a privileged status.

The founders of the nation did not at any point in time contemplate the creation of a two-tiered society such as some of some might have us believe. They contemplated the possibility that due to historical factors there might be a need to introduce certain measures so as not to allow for the dislocation or marginalizing of certain communities. This was not intended to translate into a promotion of particular communities to the detriment of others.

For this reason, article 153 recognises the legitimate interests of other communities. Further, it provides the means to ensure an adequate balance in the way protection measures are deployed. It is in this light that provision is made for reservation of positions in the public service and of scholarships, exhibitions and other similar educational or training privileges or special facilities given or accorded by the Federal Government and permits and licences where such are required under federal law. This balance is guaranteed further by the express declaration that the provision is not aimed at empowering the restriction of business or trade solely for the purpose of the protective measures. In short, there is no basis for wholesale reservations or quotas.

Put another way, despite suggestions to the contrary the Federal Constitution does not lend itself to any notions of a privileged existence for any community. It does however envisage a protected status for the Malays and the indigenous which allows for selective measures to be taken fairly and reasonably to a particular end. Any policy of the Federal Government aimed at achieving this end, whether the National Economic Policy, the New Development Policy or otherwise, cannot be seen as vesting greater rights than those contemplated under Article 153. Any other reading would allow for the kinds of abuses that are apparent.

The analysis offered above is not a difficult one. Article 153 is clear. It lends itself to affirmative action where such action is needed. Political expediency has resulted in the provision being mischaracterized and used to particular ends. This in itself is not surprising as politicians will operate as politicians do. What is of interest to me is how and why the characterization has been permitted by Malaysian society to perpetuate to the extent that as we come into our 50th year as an independent nation, the ‘two-tier’ notion has become so entrenched in our social landscape. And why is it that even as the notion continues to divide us, we insist on describing what happens in the country as being a part of a democratic process?

One of the principal reasons for this sad state of affairs is the nurturing of a climate of fear. Laws that allow for preventive detention without trial like the Internal Security Act, that stifle free expression such as the Sedition Act and the Printing Presses and Publications Act and which impede necessary access to vital information such as the Official Secrets Act have kept many Malaysians in the dark and in fear. If they have not been directly threatened or attacked, these laws have allowed the unscrupulous to demonize concerned Malaysians as being anti-Malay or anti-constitutional. They have allowed for the perversion of the social contract theory.

Additionally, a conservative Judiciary which has shied away from developing a strong civil rights tradition in our legal system has perhaps unwittingly allowed for the concomitant undermining of the rule of law. This has weakened our sense of right and wrong.

In this way, policy stereotypes have been permitted to develop and in effect become the law. Our claims to social integration are a hollow boast. Harmony cannot be found at the bottom of the gun barrel that supremacist Malay thinking is pointing at all others including non-extremist Malays.

If UMNO is serious about making amends for what transpired at the general assembly, let us hear then from its leaders of a plan by which the Federal Government intends to take us back to the spirit of protection and the dismantling of the ‘privilege’ mindset. Let us hear an admission of how the climate of fear has led to the development of racist tendencies that no amount of platitudes will help us deal with.

Until then, Malaysians should be forgiven for thinking that they have arrived at the beginning of the end.